BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
United Kingdom Journals |
||
|
You are here: BAILII >> Databases >> United Kingdom Journals >> The Language of the Law: international students and the reading of statutes. URL: http://www.bailii.org/uk/other/journals/WebJCLI/1995/issue2/cownie2.html Cite as: The Language of the Law: international students and the reading of statutes |
||
[New search] [Printable RTF version] [Help]
Fiona Cownie* LLM Lecturer in Law, University of Leicester, < [email protected]> with
Wendy Addison*, MSc formerly EAP
Tutor, University of Leicester.
Copyright &169; 1995 Fiona Cownie and Wendy Addison. First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.
*The authors would like to thank James Fawcett of Leicester University and Pat Howe of Buckingham University for their helpful comments on an earlier draft of this article.
Return to [1995] 2 Web JCLI Contents.
The number of international students studying in Britain is rising steadily. Law schools are no exception to this trend, and many law teachers enjoy the additional dimension brought by the presence of international students in tutorials and seminars. However, working in a second or third language can cause difficulties for such students, especially in a subject like law, where the nuances of language are so important. The problems which can arise are readily apparent when students begin to work with statutory materials. This article suggests an approach to the reading of statutes which could be used by law teachers and language support staff in working with international law students.
Law teachers, faced with international students who are experiencing difficulties in dealing with statutes, should be able to refer them to the English Language support service offered by their institution. It is important that law teachers realise that such a service is not intended as a sort of fourth emergency service for students whose English language skills are poor. The service is intended to support students who come from a different academic culture, whose language skills may be good, but who need information about the different styles of reading, writing or intellectual debate which they will encounter in the British academic culture which they have now joined.
However, if the language support received by international law students is going to be really effective, the responsibility of law teachers does not end when they have directed their students to the English Language unit. We have argued elsewhere (Addison & Cownie 1992) that close co-operation between the law department and the English Language unit is essential, if language tutors are to be able to offer international law students subject specific help, rather than merely offering general academic English. Subject specific assistance, as the name implies, is English Language support which is directed specifically to the needs of students studying a particular subject - in this case, law. General academic English offers support which is thought to be of assistance to students in higher education, regardless of the subject they are studying. Subject specific help can be tailored very precisely to the needs of students studying law in a particular department in a particular institution. It is therefore a much more focused learning tool.
If language support tutors are to offer subject specific help, however, they need co-operation from the department to which the students belong. It is likely that support tutors will have to design their own teaching materials to enable them to work with law students. There are very few published materials which cover English for Academic Legal Purposes (EALP), and those which do exist may not include material which is relevant for individual institutions. Tutors must therefore have information about the kind of tasks which students will be asked to carry out, so that they can design teaching materials to enable them to enhance relevant language and learning skills. They will want to know what kind of texts have to be read, what sort of writing tasks will be set, what the lectures and tutorials are like.
As far as the reading of statutes is concerned, it may appear surprising that English Language tutors would need assistance from legal academics. English Language tutors frequently have a background in Applied Linguistics. In some ways, they might be expected to be more at home with the discipline of law, which is also intimately concerned with language, than with some other disciplines. After all, lawyers spend much of their time interpreting texts; cases and statutes are read, discussed and interpreted as a matter of routine. "The study of law is a very specialised form of literary pursuit. It is the acquisition of a knowledge of legal texts, of written law or the discourse of legal institution....' (Goodrich 1986, p 91)
Yet, in Britain at least, the discipline of linguistics has made little impact upon the discipline of law. "Despite the glaringly obvious fact that both legal theory and legal practice are, and always have been, heavily dependent on the tools of rhetorical and linguistic analysis, no coherent or systematic account of the relationship of law to language has ever been achieved." (Goodrich 1987, p 1). Some legal scholars are endeavouring to bring the two disciplines together in order to extend understanding of the language of the law - apart from the work of Goodrich, mentioned above, some academics are exploring the relationship between semiotics and law (Jackson 1988), whilst others are examining the relationships between literary theory and law (Norris 1985). In addition, scholars working within the discipline of linguistics have studied the features of legal texts (for example Bhatia 1982 and 1987, Gustaffson 1975 and 1984, Maley 1985, Swales and Bhatia 1983). However, such work is not yet part of the mainstream of legal scholarship in Britain. Consequently, the EAP teacher's academic background in linguistics is unlikely to be of any more assistance when trying to help law students than it is when assisting students from any other discipline.
When language tutors explore the sort of tasks involving statutes which students will be asked to carry out , they are likely to discover that students will be expected to locate and understand Acts of Parliament, and to determine how the content of the statute applies to particular sets of facts. The sort of academic task we are referring to might involve the following:-
The powers given to the police in section 1 of The Police And Criminal Evidence Act 1984 (PACE) are far too limited. Discuss.
This task has a high linguistic content, in the sense that it involves reading a text and interpreting it. However, although that is true, the linguistic skills involved cannot be separated from the legal skills involved; what the student is being asked to do is to determine the legal significance of the statute and then discuss that in the light of the quotation.
Here is an excerpt from section 1 of PACE:-
"1. (3) This section does not give a constable power to search a person or vehicle or anything in or on a vehicle unless he has reasonable grounds for suspecting that he will find stolen or prohibited articles or any article to which section 8A below applies."
A lay person (such as an English for Academic Purposes (EAP) tutor without legal training) might be able to make a judgement about the meaning of the text: "It means that if the police suspect that a person has taken something which is not theirs, that person can be searched by the police." That would be a perfectly reasonable conclusion, but it would not be a correct legal conclusion. The correct legal conclusion would run something like this:- "This section of the statute only gives a police constable power to search a person if the constable has reasonable grounds for suspecting that he will find, inter alia, articles stolen contrary to the Theft Act 1968." The difference between the two conclusions largely hinges on the different meanings ascribed to the word "stolen". As soon as a lawyer comes across the word 'stolen', she immediately relates it to the Theft Acts. For the lay person, however, stealing is principally a moral question - taking something which you ought not to take. Language tutors need to appreciate that the students will be expected to draw out the legal significance of the text, not merely make sense of the language as a lay person might. It is not part of the language tutor's job to become a subject specialist and start teaching law, but tutors need to appreciate how the discipline of law approaches the texts with which the students have to work. White points out that "Information...regarding the method used by the subject teacher is essential before deciding on what kinds of skill [the EAP tutor] should be helping the student to develop." (White 1980, p 14).
During discussions with language tutors, it may be useful to illustrate the point which is being made. Consider the following factual situation:
Tom owns a car. He takes it to the garage to be repaired. When he goes to collect it, there is no- one around, so he just drives away, without paying the repair bill, although he knows that he should not do this. Has he stolen his own car?
The lay person is likely to reply "Of course he hasn't - you can't steal something which you own." However, criminal lawyers would say that Tom has stolen his car. Under section 1(1) of the Theft Act 1968 "A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it...." (emphasis added). Section 5 of the Act goes on to state that property will be regarded as "belonging to any person having possession or control of it." When Tom sent his car to be repaired, it was in the possession or control of the garage. Although Tom could terminate the agreement at any time in the proper manner (ie by paying for any work which had been carried out), he stole the car when he dishonestly took it away from the person who had possession or control of it (ie the garage owner) without paying.
The fact that the law accepts that it is possible to steal your own car is an illustration of the way in which the law uses ordinary forms of English, but ascribes its own peculiar meanings to them. Since the law continues to use words, like 'steal' which are also used in everyday conversation, the lay person can deal with a legal text quite happily, taking the usual meaning of the words - but come to a completely different interpretation of the text to a lawyer, who would ascribe particular legal meanings to the words. Students will be expected to learn the lawyer's method of dealing with these texts. Therefore in attempting to help law students, without the input of a lawyer, "there are clear signs that...[the EAP tutor] may confuse the student and make his task more difficult." (White 1980, p 14)
Is it possible for an EAP teacher, who is, in this sense, a lay person, to assist at all? There is certainly evidence that in the past, some EAP teachers have found difficulty in assisting law students; Bhatia comments:
"In recent years, there have been a few reports from various parts of the world...on some of the EALP courses being initiated for the benefit of law students. However, there is still very little available in the form of actual teaching materials, and...[the information on what is done] points to cautious and rather half-hearted attempts to design and teach EALP courses...." (Bhatia 1989, p 225)
The importance of co-operation with legal academics is underlined if one considers how language tutors without access to such expertise might go about assisting law students. When faced with the task of helping students to deal with difficult texts, a common strategy for the EAP tutor to adopt has been to use a gradual approach (Bhatia 1983, p 42). Often the texts which are used in the first few stages of this gradual approach are, to use Bhatia's terminology, "simplified". Simplification is "a special form of intra-lingual translation, the purpose of which is to make a given text simpler in terms of its content and/or form. This is usually done by bringing its contents within the area of language already assumed to be known to the proposed audience." (Bhatia 1983, p 42). A simplified version of the Sale of Goods Act 1979 s 31(2) might read something like this:
Take the situation where one person buys items in instalments from another person and pays for each instalment separately. If one or more of the instalments contains items which are damaged, or if the person buying the items changes his mind or at any point refuses to pay, then the other side may be able to do something about it. It will be necessary to see what is stated in the contract in order to find out what the consequences are. The person who is suffering the loss may be able to treat the whole contract as at an end and refuse to carry out anything further which he promised to do and sue for damages in order to obtain compensation for the loss that he has suffered. Or, if the incident can be isolated from the rest of the agreement, the person suffering the loss may have to go on with the contract until both sides have fulfilled all the other promises they made, but afterwards he will be allowed to sue the other side in order to obtain compensation for the loss that he has suffered.
Legal academics are likely to find no difficulty in agreeing with Bhatia's comment that the disadvantage of the simplification process is that when the text is simplified, both the form and the content of the original text are changed. For example, the simplified version above was much longer than the original, because it had to try and set out the meanings of technical words such as "repudiation" and "severable breach". This process of expansion means that the simplified text really becomes a new text. The differences between the original text and the simplified version are not just differences of style. The simplified version is a legally inaccurate version of the original (despite the fact that it was written by a lawyer). The inaccuracies have been introduced because simplification involves abandoning an important characteristic of legal language, which is that a perfectly ordinary word (like 'goods') can stand for a whole bundle of concepts. Simplification cannot permit language to be used in this characteristically legal way. It would be impossible to list all the possibilities which 'goods' opens up, and the further one moves towards trying to give a comprehensive legal definition, the further one departs from achieving simplification, as opposed to complication. However, with the use of the word "items", all the resonances of the original text are lost. Even if the word 'goods' was retained, it would still not include all the legal resonances, because they only occur when the word is used in its statutory context.
Bhatia (1983, p 44) also argues that there are pedogogical problems with this approach. Since simplification often involves expansion, there is a wider spread of information distribution in the simplified version, which is contrary to the usual character of traditional legal discourse, aiming as it does to include maximum information in one sentence. Therefore simplification may in fact hinder the learner in developing efficient reading strategies for reading statutes. Another problem with simplified texts is that the decision as to what will be difficult for learners, and therefore merits simplification, is a highly subjective one, which may not be accurate.
But the most compelling argument against simplification procedures, and one which is commonly acknowledged by English tutors today, is that they may not achieve their ultimate aim of assisting law students to cope with legal texts that they will meet in their academic studies. This is because simplification does not help the students to develop efficient textual processing strategies which they can then use on the complex texts which will form part of their studies. As Howe has written "This specialised nature of law means that outside the subject, its techniques and language can only be taught and learnt at a very primitive level." (Howe 1990, p 215). Consequently, preserving the original material is essential if English Language tutors are to succeed in equipping students with reading strategies to deal with legislative writing. As Adamson concludes, "academic skills should be taught in connection with authentic academic material" because "skills that are developed with...adapted academic material may not be effective with real material." (Adamson 1990, p 85).
However, the task of devising appropriate teaching materials is a very difficult one for the EAP tutor with no previous legal training. Faced with this problem in the Law Faculty at the University of Leicester, I have worked together with the English Language Support Tutor, Wendy Addison, to assist in the production of a set of materials in the form of a teaching module which could constitute part of an in-sessional language and study skills course. The materials, devised by Wendy Addison, are self contained, and are suitable for students who have first been introduced to statutory material by a lawyer. One of the reasons for this is because it is important for students to have some knowledge of the overall text type, but also, if EAP tutors introduce statutes to the students before law lecturers, they run the risk of being asked legal questions which they cannot answer or which they may answer incorrectly. "[C]are must be taken not to move into areas of expertise and responsibility that rightfully belong to the content lecturer. This would not be fair to any of the three people involved in the educational experience: the student, the content lecturer, or the ESP lecturer." (Brennen and van Naerssen 1989, p 196). These materials are therefore appropriate for an in- sessional language support course, for use with students who are in the process of embarking on an undergraduate law degree and have had some experience of the way in which statutes are constructed. However, similar materials were also used successfully on pre-sessional English Language and Study Skills courses with post-graduate students studying in Britain for the first time, since postgraduates are already familiar with the structure of legal discourse. In that case the authentic materials used were treaties rather than statutes, but because the language used in drafting treaties and statutes has many similarities, the procedures described below are directly applicable.
Before introducing easification procedures which can be applied to reading statutes, it is advisable for EAP tutors to familiarise themselves with the general style and layout of statutes. Law teachers will be able to direct language tutors to the study guides for novice law students which describe the main structural features of statutes, for example Bradney et al (1991), Holland and Webb (1991). Such guides provide an invaluable way into reading such legal texts for EAP tutors. They explain the conventions associated with this particular text type, with which language tutors will wish to become familiar, for example the practice of dividing the main body of the Act into sections and subsections, the presence of marginal notes, which give some indication of the content of the section, and the schedules, found at the end of many statutes, containing technical details which it is inappropriate to list in the body of the statute. Although knowledge of these conventions is important for a complete understanding of the text, language tutors will immediately appreciate that the conventions do not in themselves provide any practical strategies for reading the actual legal rules contained within the main body of text. They will also readily appreciate that it is the drafting style, with its high degree of subordination and great number of propositions, qualifications and alternatives which can easily present readers with problems, particularly those for whom English is not their first language.
The following example shows how the easification procedure can be applied to the Law of Property Act 1925 s 62 (1). In order to make the text easier to process, the main structural elements of the provision have been written on the left side of the page and all the extra propositions have been placed on the right. Initially the items in Column A are read. It is possible to draw large arrows from one phrase to another so that column A can be read by following the large arrows. This enables the student to grasp the essential sense of the text, before they go on to incorporate the Column B items, which can be linked at the appropriate places with small arrows. When Columns A and B are read together in this way, they form the whole text.
Law of Property Act 1925 s 62(1) (Original text)General words implied in conveyances
62 (1) A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land or any part thereof, or, at the time of conveyance, demised, occupied or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.
Although this excerpt is not as devoid of punctuation as some older statutes, a language tutor would be likely to point out that its one sentence is extremely long (81 words). Gustaffsson (1975, p 10) found that the mean sentence length in statutory writing, specifically the Courts Act 1971, was higher than in other types of prose and notes (at p 12) that the construction of paragraphs in statutes in the form of one sentence containing all the relevant material developed from a tradition which attempted to achieve precision in legislative drafting. The preoccupation with producing unambiguous texts is probably why this characteristic feature has proved remarkably resistant to change. Coupled with another feature, that of "syntactic discontinuity" (Bhatia 1984), this renders legislative writing very difficult for the reader to process.
In the easified version of the statute given below, the text is set out in two columns. It can be seen that if the essential main structural thread in column A on the left is read first, it delays processing of all the extra qualifications, until the overall sentence structure has been deduced. The whole provision can then be read and understood more easily.
Easified version
Column A Column B A conveyance of land shall be deemed to include, and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining, or reputed to appertain to the land, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.
For the EAP tutor the legal vocabulary found in statutes may present difficulties. An example of this is the word 'demised' used above as a verb with the specific legal meaning of 'granting a lease of lands or other hereditaments' (Osborn's Concise Law Dictionary). In modern lay language it is used only as a noun (demise being a formal word for death or downfall). It is not necessary for EAP tutors to learn all the instances when this occurs, but merely to note the concept. The students will be expected to rely on their own legal knowledge to spot such points, but the tutor must be able to appreciate that this difficulty may occur. It is these kind of nuances which can be discussed when consultations between the language tutor and members of the Law department take place.
It is also important that both language tutors and legal academics realise that there may be more than one way to divide statutory material into the two columns discussed above. Indeed one of the aims of teaching strategies to deal with such texts would be to draw students' attention to the different ways in which the text can be read. This point is well illustrated in the two possible solutions to the Civil Liability (Contribution) Act 1978 s 1(4) set out below, where solution A has far less information in the A column than solution B. For ease, the highlighted text represents the A column items.
Civil Liability (Contribution) Act 1978 s 1(4)Possible solution A
A person who has made or agreed to make any payment in bona fide settlement or compromise of any claim made against him in respect of any damage (including a payment into court which has been accepted) shall be entitled to recover contribution in accordance with this section without regard to whether or not he himself is or ever was liable in respect of the damage, provided however, that he would have been liable assuming that the factual basis of the claim against him could be established.
Possible solution B
A person who has made or agreed to make any payment in bona fide settlement or compromise of any claim made against him in respect of any damage (including a payment into court which has been accepted) shall be entitled to recover contribution in accordance with this section without regard to whether or not he himself is or ever was liable in respect of the damage, provided however, that he would have been liable assuming that the factual basis of the claim against him could be established.
Even easifying a text in this way may present problems for EAP tutors working without the help of a lawyer. Close co-operation between the EAP tutor and the law department is therefore very helpful because "Recourse to the subject specialist [can provide] the language teacher with some valuable insights which should enable him to perform his role more effectively." (White 1980, p 14)
It might be thought that this procedure is less useful for more recent statutes than the one cited above. Bhatia (1987) analyses how statutes have been made more readable in recent years by the use of textual- mapping devices. These are referential devices, the function of which is "to signal that some aspect of the provision under discussion has been postponed and to refer to the location where it could be found." (Bhatia 1987, p 3), thus reducing the information load at certain points. There is now a greater use of punctuation, and the layout of legal rules tends to be in sections, made more manageable by the use of numbered or lettered points. However our experience at Leicester has been that even with Acts drafted in the last ten years, easification can help to render texts less opaque. One example is the Police and Criminal Evidence Act (PACE) 1984 s 1(3) and (4). Even though, at first glance, this looks easier to process because of the shorter sub-sections and the use of the letters (a) and (b) to further subdivide provisions, there are still many alternatives and the length of the whole sentence at sub-section 4 (82 words) is in fact comparable with that of the Law of Property Act s 62(1) above.
PACE 1984 s 1(3) and (4) (Original text)(3) This section does not give a constable power to search a person or vehicle or anything in or on a vehicle unless he has reasonable grounds for suspecting that he will find stolen or prohibited articles or any article to which subsection (8A) below applies.
(4) If a person is in a garden or yard occupied with and used for the purposes of a dwelling or on other land so occupied and used, a constable may not search him in exercise of the power conferred by this section unless the constable has reasonable grounds for believing -
(a) that he does not reside in the dwelling; and
(b) that he is not in the place in question with the express or implied permission of a person who resides in the dwelling.
Easified version
Column A Column B (3) This section does not give a constable power to search a person, or vehicle or anything in or on a vehicle unless he has reasonable grounds for suspecting that he will find stolen or prohibited articles, or any article to which subsection (8A) below applies. (4) If a person is in a garden or yard occupied with and used for the purposes of a dwelling or on other land so occupied and used, a constable may not search him in exercise of the power conferred by this section unless the constable has reasonable grounds for believing -, (a) that he does not reside in the dwelling; and (b) that he is not in the place in question with the express or implied permission of a person who resides in the dwelling.
(a) and (b) could have been further sub-divided as follows:
Column A Column B (a) that he does not reside in the dwelling; and (b) that he is not in the place , in question with the express or implied permission of a person who resides in the dwelling.
The above examples easify the particular texts chosen but do not necessarily teach students how to easify for themselves. In order to achieve this ultimate aim a series of learning tasks were devised. These employ a variety of legislative materials to show how the techniques can be applied. They have been devised with two aims in mind:
(a) to familiarise students with the structure and style of legislative drafting and
(b) to provide a series of graded tasks which will lead them to be able to easify the statutes they are reading (without the need to divide the material into two columns).
Students are then given the sections in two columns as above and asked to:
(a) cover column B with a blank sheet of paper then read column A , following the large arrows
(b) read columns A and B together, following the small arrows
(c) go back and read the original text.
Students should discover that having read the sections in this second way, the material is then easier to follow in the original. They may be encouraged to find the subject and the main verb. This will provide them with a helpful structural framework.
GATT Article II (1)(b)
Column A Column B The products described in Part 1 of the Schedule, * shall, * be exempt from ordinary customs duties, * Such products shall also be exempt from all other duties, * in excess of those imposed on the date of this Agreement , *
Original text
1. (b) The products described in Part I of the Schedule relating to any contracting party, which are the products of territories of other contracting parties, shall, on their importation into the territory to which the Schedule relates, and subject to the terms, conditions or qualifications set forth in that Schedule, be exempt from ordinary customs duties in excess of those set forth and provided for therein. Such products shall also be exempt from all other duties or charges of any kind imposed on or in connection with importation in excess of those imposed on the date of this Agreement or those directly and mandatorily required to be imposed thereafter by legislation in force in the importing territory on that date.
Where premises are let under a tenancy which expressly or impliedly gives the landlord the right to enter the premises to carry out any description of maintenance or repair of the premises, then, as from the time when he first is or by notice or otherwise can put himself in a position to exercise the right and so long as he is or can put himself in that position, he shall be treated for the purposes of subsections (1) to (3) above (but for no other purpose) as if he were under an obligation to the tenant for that description of maintenance or repair of the premises; but the landlord shall not owe the tenant any duty by virtue of this subsection in respect of any defect in the state of the premises arising from or continuing because of, a failure to carry out an obligation expressly imposed on the tenant by the tenancy.
To complete the task, students can then be asked to place the Column B items, again on separate slips of paper, at the appropriate point between the Column A items.
Sale of Goods Act 1979 s 11(3)Whether a stipulation in a contract of sale is a condition, the breach of which may give rise to a right to treat the contract as repudiated, or a warranty, the breach of which may give rise to a claim of damages but not to a right to reject the goods and treat the contract as repudiated, depends in each case on the construction of the contract; and a stipulation may be a condition, though called a warranty in the contract.
(a) read the underlined items only
(b) read the whole section
This develops the ability to assign items to the appropriate category without the need to easify using separate slips of paper. Tutors should note that there is not necessarily one correct answer, and students should be made aware of this. Answers will be correct if the underlined items (column A) make grammatical sense when read together.
Students should be given the opportunity to compare their efforts with each other and discuss what they think is the most useful way of dividing up the text.
Theft Act 1968 s 20 (1)A person who dishonestly, with a view to gain for himself or another or with intent to cause loss to another, destroys, defaces or conceals any valuable security, any will or other testamentary document or any original document of or belonging to, or filed or deposited in, any court of justice or any government department shall on conviction on indictment be liable to imprisonment for a term not exceeding seven years.
A suggested solution to task 5 might be :-
Section 20 (1)A person who dishonestly, with a view to gain for himself or another or with intent to cause loss to another, destroys, defaces or conceals any valuable security, any will or other testamentary document or any original document of or belonging to, or filed or deposited in, any court of justice or any government department shall on conviction on indictment be liable to imprisonment for a term not exceeding seven years.
It is important to notice that when students sort out the column A items of the Theft Act, the punctuation may be a little confusing, since commas will appear in places where they would not normally be used. However, when the subsection is read as a whole, the punctuation performs its correct grammatical function. Tutors may wish to draw students' attention to this issue and point out that in this particular case a comma indicates that a B item follows.
Unfair Contract Terms Act 1977 s 9(2)Where on a breach the contract is nevertheless affirmed by a party entitled to treat it as repudiated, this does not of itself exclude the requirement of reasonableness in relation to any contract term.
Law of Property Act 1925 s 46.
The Lord Chancellor may from time to time prescribe and publish forms of contracts and conditions of sale of land, and the forms so prescribed shall, subject to any modification, or modification, or any stipulation or intention to the contrary, expressed in the correspondence, apply to contracts by correspondence, and may, but only by express reference thereto, be made to apply to any other cases for which the forms are made available.
PACE 1984 s 1(4)
If a person is in a garden or yard occupied with and used for the purposes of a dwelling or on other land so occupied and used, a constable may not search him in exercise of the power conferred by this section unless the constable has reasonable grounds for believing -
(a) that he does not reside in the dwelling; and
(b) that he is not in the place in question with the express or implied permission of a person who resides in the dwelling.
In the examples given above the texts are divided fairly evenly between the two columns. However, students should be made aware that this will not always be the case, as the following example shows.
Civil Evidence Act 1968 s 13(1)In an action for libel or slander in which the question whether a person did or did not commit a criminal offence is relevant to an issue arising in the action, proof that, at the time when that issue falls to be determined, that person stands convicted of that offence shall be conclusive evidence that he committed that offence; and his conviction thereof shall be admissible in evidence accordingly.
In this example the text is largely contained within the A column because of the nature of the provision.
Unfair Contract Terms Act 1977 s 2 (1)A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence.
Occupiers' Liability Act 1957 s 5(1)
Where persons enter or use, or bring or send goods to, any premises in exercise of a right conferred by contract with a person occupying or having control of the premises, the duty he owes them in respect of dangers due to the state of the premises or to things done or omitted to be done on them, in so far as the duty depends on a term to be implied in the contract by reason of its conferring that right, shall be the common duty of care.
GATT Article VI, Paragraph 3
No countervailing duty shall be levied on any product of the territory of any contracting party imported into the territory of another contracting party in excess of an amount equal to the estimated bounty or subsidy determined to have been granted, directly or indirectly, on the manufacture, production or export of such product in the country of origin or exportation, including any special subsidy to the transportation of a particular product. The term "countervailing duty" shall be understood to mean a special duty levied for the purpose of offsetting any bounty or subsidy bestowed, directly or indirectly, upon the manufacture, production or export of any merchandise.
Another important aspect of this technique is that it is also a technique which promotes a critical approach to statutory materials. In the introductory module described above, students have been encouraged to analyse the statutory material, and to discuss the appropriate division of the statutory material into columns A and B. This discussion will inevitably lead the students to draw on their legal knowledge because some divisions of the text (which might appear quite reasonable to the lay reader) may not "make legal sense". For example, in the Unfair Contract Terms Act Section 2 the following division of the section would not bring out the essential legal significance because it does not focus on the contractual context nor on the fact that the death or injury has to result from negligence, rather than any other cause.
A person cannot by reference to any contract term or to a notice given to persons generally or to particular persons exclude or restrict his liability for death or personal injury resulting from negligence.
Students should be able to recognise that such a division would be inappropriate for legal rather than linguistic reasons. Readers may wish to consider whether such discussions might also benefit many home students.
Adamson, H D (1990) "ESL Students' Use of Academic Skills In Content Courses" 9 English for Specific Purposes 67-87.
Addison, W & Cownie, F (1992) "Overseas Law Students: Language Support and Responsible Recruitment" 19 Journal of Law and Society 467.
Bhatia, V K (1982) An investigation into formal and functional characteristics of qualifications in legislative writing and its application to English for academic legal purposes. Unpublished PhD thesis, University of Aston in Birmingham.
Bhatia, V K (1983) "Simplification v. Easification - The Case of Legal Texts" 4 Applied Linguistics 42.
Bhatia, V K (1984) "Syntactic discontinuity in legislative writing and its implications for academic legal purposes" in Reading for professional purposes (London: Heinemann) p 90.
Bhatia, V K (1987) "Textual-mapping in British legislative writing" 6 World Englishes 1.
Bhatia, V K (1989) "Legislative writing: A case of neglect in EA/OLP Courses" 8 English for Specific Purposes 223.
Bradney, A G D, Fisher, V, Masson, J, Neal, A & Newell, D (1991) How to Study Law, 2nd edn (London: Sweet and Maxwell).
Brennen, M and van Naerssen, M (1989) "Language and content in ESP" 43(3) English Language Teaching Journal 196.
Goodrich, P (1986) Reading The Law (Oxford: Basil Blackwell).
Goodrich, P (1987) Legal Discourse (London: Macmillan Press).
Gustaffsson, M (1975) Some Syntactic Properties of English Law Language (Turku: University of Turku).
Gustaffsson, M (1984) "The syntactic features of binomial expressions in legal English" 4 Text 123.
Holland, J and Webb, J (1991) Learning Legal Rules (London: Blackstone Press).
Howe, P (1990) "The Problem of the Problem Question in English for Academic Legal Purposes" 9 English For Specific Purposes 215.
Jackson, B S (1988) Law, Fact and Narrative Coherence (Merseyside. Deborah Charles Publications).
Maley, Y (1985) "Judicial Discourse: Festschrift in honour of Arthur Delbridge" 48 Beitrage zur Phonetik und Linguistik 159.
Norris, C (1985) The Contest of Faculties (London: Methuen).
Osborn's Concise Law Dictionary (1983), 7th edn, Bird, R (ed) (London: Sweet and Maxwell).
Swales, J M and Bhatia, V K (1983) "An Approach to the Linguistic Study of Legal Documents" 5(3) Fachsprache 98.
White, G (1980) "The Subject Specialist and the ESP Teacher" 2 Lexden Papers.
Zander, M (1989) The Law Making Process, 3rd edn (London: Weidenfeld and Nicolson).
